Request By:
Gary Tucker
Jim Deckard
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Bar Association violated the Open Records Act in the disposition of Gary Tucker's requests to inspect records relating to his complaint against an attorney who Mr. Tucker identified by name. For the reasons that follow, we find that the KBA is not bound by the provisions of the Open Records Act and therefore cannot be said to have violated the Act in the disposition of Mr. Tucker's request.
In correspondence directed to this office following commencement of Mr. Tucker's request, KBA Executive Director James L. Deckard asserted that the KBA is not subject to the Open Records Act. In support, Mr. Deckard cited OAG 91-47 and the authorities cited therein. Shortly thereafter, Mr. Tucker submitted a written rebuttal, noting that seventeen years have passed since OAG 91-47 was issued and questioning the opinion's continuing validity. Notwithstanding the passage of time, we believe that OAG 91-47 reflects an accurate interpretation of the law.
In OAG 91-47, the Attorney General determined that the KBA is not a public agency within the meaning of the Open Records Act. At page 2 of that opinion, we observed:
Section 116 of the Kentucky Constitution vests in the Supreme Court the power to "by rule, govern admission to the bar and the discipline of members of the bar." The court has done so in Supreme Court Rule 3.025, by which the Bar Association is established "to maintain a proper discipline of the members of the bar . . . and with the principles of the legal profession as a public calling, to initiate and supervise, with the approval of the court, appropriate means to insure a continuing high standard of professional competence . . . ."
This position was consistent with OAG 81-41 in which the Attorney General opined that § 116 removed the KBA from legislative authority. Citing the Kentucky Supreme Court's opinion in Ex parte Auditor of Public Accounts, 609 S.W.2d 682 (Ky. 1980), the Attorney General noted that the judicial branch, of which the Bar Association is a part, has exclusive authority to manage its own affairs. It is instructive to quote from the Supreme Court's opinion in Ex parte Auditor :
Both the [Bar] Association and the Board of Bar Examiners exist solely by virtue of rules of this court expressly and exclusively authorized by Const. Sec. 116. There is no constitutional authority by which they can be made accountable to either of the other two branches of government except for their stewardship of such funds or property as may come into their possession through these sources. Neither of those agencies has any such funds or property. Their funds and property are public funds and property because their official functions are entirely public in nature, but their accountability is to this court only, of which they are an integral part.
609 S.W.2d at 686.
Ex parte Auditor echoed the position adopted by the Kentucky Supreme Court in an earlier case involving, inter alia , application of the Open Records Act to the courts and judicial agencies, including the Kentucky Bar Association. In Ex parte Farley, 570 S.W.2d 617 (Ky. 1978), the Supreme Court held that records generated by the courts and judicial agencies are not subject to statutory regulation, including the Open Records Act. At page 625 of that decision, the Court held that although "there is very little in the policies evinced by the Open Records Law that we could not accept as a matter of comity . . . some details of the law . . . present interferences that we regard as inconsistent with the orderly conduct of our business, and those we do not accept." Farley at 625. The Attorney General has relied on this language in consistently holding that the courts and judicial agencies are not bound by the provisions of the Open Records Act except to the extent that those provisions are not in conflict with the Court's rules and regulations governing access to its own records, and are accepted as a matter of comity. OAG 78-262; OAG 79-174; OAG 85-9; OAG 91-45; 93-ORD-47; 95-ORD-89; 96-ORD-173; 97-ORD-138; 02-ORD-24.
This position finds support in KRS 26A.200 and KRS 26A.220. KRS 26A.200 provides that all records which are made by or generated for or received by any agency of the Court of Justice, or by any other court or agency or officer responsible to such court, are the property of the court and are subject to the control of the Supreme Court. Records of the courts and judicial agencies are therefore given a special status, and placed under the exclusive jurisdiction of the Court. OAG 78-262; OAG 85-9; OAG 87-53; OAG 90-4. Moreover, KRS 26A.220 provides:
All public officers, public agencies, or other persons having custody, control or possession of court records by statute or otherwise shall be subject to the direction of the Supreme Court with regard to such records and no such officer, agency, or person shall fail to comply with any rule, regulation, standard, procedure, or order issued by the Chief Justice or his designee.
In analyzing these provisions, and their interface with the Open Records Act, the Supreme Court opined:
[W]ith respect to records that belong to the courts and are a part of their ongoing work, the only conclusion consistent with the constitutional right of control over their records is that the public policy [relating to public records and access thereto] must be articulated by the courts themselves.
Farley at 625 (emphasis added). See also,
York v. Commonwealth, 815 S.W.2d 415, 417, 418 (Ky. App. 1991) (holding that "the only statute which specifically names courts as public agencies [, namely, the Open Records Act] has been held not to apply to court records").
As recently as February 2004, this office reaffirmed the position that the KBA is not a public agency for open records purposes, declaring that:
It is for the court, and not this office, to determine which policies evinced by the Open Records Law present interferences with the orderly conduct of its business, and which policies it will accept as a matter of comity.
04-ORD-037, p. 4. Disputes relating to access to court records, including records of the Kentucky Bar Association, must be resolved by the Court. Accord, 93-ORD-47 (because Kentucky Bar Association is not a public agency within the meaning of KRS 61.870(1), it cannot be said to have violated the Open Records Act in denying a request for records relating to the requester's complaint against her former attorney). As noted above, the passage of time has not altered our analysis.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.